Murphy v. Merzbacher

mаjority facts that the finds to dispute, my be view, are not material facts. These facts have no largely bearing on a ought public whether restroom to be considered a or nonpublic facility. The majority contends that whether persons who know where the restroom is located never- must permission theless ask to use the restroom is a disputed fact bearing on the status of the restroom. A business’s decision to require permission customers to ask to use the facilities does change the fundamental characteristics of the rest- Furthermore, room as public nonpublic. or the location existence of a key unlock the restroom door is not material to the determination of whether is facility public or private. Many clearly public, that are such as restrooms stations, those many gas require key. nevertheless Final- ly, the number of which people Safeway directs to the rest- room a given period time is not material to the restroom’s status. Heavy nonpublic use of a restroom does not convert public facility just that restroom into a infrequent as use of a public otherwise, facility nonpublic. cannot make it itWere businesses would have an incentive to limit sharply the use of its restroom to avoid it from converting nonpublic to public losing immunity conferred the statute. reasons,

For the above stated I dissent.

697 A.2d 861 MURPHY, Elizabeth et al. MERZBACHER,

John J. et al. 55, Sept. Term,

No. 1996. Appeals Maryland. Court of

July 1997. Sept. Reconsideration Denied (Suder P. Jeffrey Suder, P.A.), Shiller Baltimore, & Wayne (Robin M. Smith, Janet, Willoughby R. Willoughby & Ger- shon, L.L.C., brief), Baltimore, on all Appellants. for House,

Robert VanGeison, H. (Gregory Jr. L. Anderson Coe L.L.P., brief), (Samu- & King, Baltimore, on Kevin M. Murphy Smith, Jr., Carr, Goodson, el J. Warner, brief), Lee & on DC, Washington, for Appellees. BELL, C.J.,

Argued ELDRIDGE, before RODOWSKY, CHASANOW, KARWACKI, RAKER and WILNER, JJ.

KARWACKI, Judge. (1974, § Repl.Vol.), 5-101

Maryland Code Article, Maryland’s general Proceedings Courts and Judicial limitations, a civil lawsuit to be ordinarily requires statute accrues. from the date the action years filed within three 5-201(a) Nonetheless, provides of that same Article section to а limitation under subject a cause of action “[w]hen of a minor or mental this title accrues favor Subtitle shall file his action within incompetent, person limitations years applicable period or the lesser of three disability is removed.” after the date can be in this whether a defendant appeal We are asked limitations when threats asserting from equitably estopped frustrat- prevented have otherwise allegedly the defendant limita- bringing applicable suit within plaintiff ed the we nonethe- foreclosing possibility, period. tions Without in this presented that under the circumstances less shall hold timely for want of case, claims are barred Appellants’ prosecution.

I. nearly twenty years of this reaches back genesis appeal students at Appellants twelve of the were to the 1970’s when Baltimore, Community Middle School of South the Catholic Baltimore, Division of Archdiocese of Catholic Inc. The (“Archdiocese”), Joseph John employed Schools Appellants,1 to the According at that school. as an instructor instances, constructive, in Merzbacher, and some with the Archdiocese, to a subjected Appellants knowledge actual of the sexual, and emo physical, brutal systematic campaign and Communi- tutelage their at the Catholic during tional violence Doe, Lewandowski, Bruce, Doe, Bryan Maryland Jane Mike 1. Sharon Micolowski, Doe, House, Mary Murphy, Katherine James Elizabeth Smith, Melnick, Doe, Angela Farley, Jane Roe and Melody Steven Edward Blair. ty Middle wrongdoing, School.2 an effort to conceal his Merzbacher allegedly threatened his victims and their families with violence and death if the authorities were ever informed of his actions. Appellants concede that the last threat 1980, Merzbacher any one of them occurred than no later and that all threats ceased Appellants before reached the age majority. 1994,

In January of Merzbacher was indicted the Circuit Court for Baltimore City for the and rape sexual child abuse judice. the case sub Murphy, Elizabeth an Appellant On 8,1995, crimes, June a jury convicted Merzbacher of those and he was sentenced to imprisonment plus years.3 life ten The Special Court of Appeals affirmed Merzbacher’s convictions and sentences.4 6, 1994, January

On Appellant Murphy filed the first of fourteen civil complaints filed by Appellants the Circuit Court for Baltimore City against Merzbacher and the Archdio- Murphy, cese. along with the other Appellants, sought com- pensatory punitive damages for various intentional and non-intentional torts resulting from their sexual alleged abuse by Merzbacher. responded Archdiocese with a Motion to Dismiss as

serting Maryland’s three-year statute of limitations.5 Appel- Bryan Angela Petitioners House Farley were never enrolled in the 2. School, Community Catholic although Middle Mr. House did attend summer classes at the school on an informal basis and lived with period Merzbacher for a Farley apparently of time. Ms. a friend of Mr. House. Both they maintain that were victims of Merzbacher’s attacks. 3. sentencing place Merzbacher’s July took on 1995. Term, Maryland, John J. September v. State No. (1996) Md.App. (unreported), granted, cert. (1996). 685 A.2d 450 assault, Appellants’

5. To the extent Complaints alleged counts of those (1974, governed by claims Maryland are Repl.Vol.), § Code 5-105 of the Courts Proceedings provides and Judicial Article which “[a]n action for assault ... year shall be filed within one from the date it Otherwise, Appellants’ accrues.” subject Maryland’s claims are general three-year provides: statute of limitations. It lants in turn that dеath threats should argued Merzbacher’s the Archdiocese from limitations as a equitably estop raising 9, 1994, court denied September defense. the circuit On could Respondent’s parties Motion to Dismiss so that discovery Appel- conduct limited on the issue of whether from time of the lants were under continuous duress alleged through years prior filing threats three to the actions below. discovery, the Archdiocese filed a new Motion to

Following Alternative, Dismiss, or, Summary Judg- in the for [a Motion] ment, a again pleading once limitations as defense. On Octo- ber the circuit court issued a Memorandum and summary judgment favor of the Archdio- granting Order cese, concluding although may estop threats a defendant limitations, from claims were nonetheless asserting Appellants’ threats ceased before “the long barred since Merzbacher’s age majority year victims reached the the three [and] followed.” period period Judgment of limitations similarly Appellee entered in favor of Merzbacher on Novem- 16,1995. ber fact, they

Because contained common issues of law and purposes cases for “the of dis- Appellants’ court consolidated matters, review.” That Order covery, pre-trial appellate 21, 1995, joint as a final and issued on November served Archdiocese in all of judgment in favor of Merzbacher and the timely appeal then noted a Appellants’ Appellants cases. issued a Writ of Certio- Special Appeals. to the Court of We before consideration of the cases rari on our own motion as court. Such other facts neces- appellate the intermediate into the discussion below. sary incorporated are

II. judg appeal grant summary As this is an favor, our sole task is to determine whether Appеllees’ ment in Three-year general. "§ 5-101. limitation in years from the date at law shall be filed within three A civil action provides provision of the Code a different unless another it accrues period an action shall be commenced.” of time within which the trial legally Trailmaster, court was Beatty correct. v. 726, 737,

Md. (1993); Bankerd, 625 A.2d King 98, 111, (1985). 492 A.2d regard, summary judgment appropriate is when there is no dispute as to material fact and the moving party is entitled to judgment as a 2-501; matter of law. Maryland Rule v. Bowen Smith, 449, (1996). 454, 81, 342 Md. 677 A.2d 83 assessing below, the court’s actions point we out that ‘"ordinary principles governing summary ... judgment continue to apply when the issue on summary judgment is Kovens, 280, 304, O’Hara v. limitations[.]” 305 Md. 503 A.2d (1986). 1313, 1325 If plaintiff files his or her action beyond the period, barred, limitations generally it is entitling the defendant to judgment as a matter of law.

We previously have observed that a statute of limita tions is nothing more than legislature’s “the judgment about the reasonable time needed to institute suit.” [a] Doe v. Maskell, 684, 689, (1996). 342 1087, Md. 679 A.2d 1089 As the United Supreme States Court acknowledged fifty years over ago:

“Statutes of limitation justification find their in necessity and convenience rather than in logic. They represent expe- dients, rather than principles. They are practical and prag- matic devices to spare the courts from litigation of stale claims, and the citizen from being put his defense after faded, memories have witnesses or disappeared, have died (Internal and evidence omitted). has been lost. citation They are by definition arbitrary, and operation their does not discriminate between just unjust claim, or the voidable and unavoidable delay. have They come into the law not through judicial process but through legislation. They represent public policy privilege about liti- gate.” Donaldson,

Chase Securities Corp. 304, v. 314, 325 U.S. 65 1137, 1142, (1945). S.Ct. 1628, Thus, 89 L.Ed. 1635 when plаintiffs imprudently prolong their decision to an bring ac- tion, these statutes act as a complete claims, bar to their Doe, defendants from the burden.

relieving potential pending 689-90, Md. at 679 A.2d at 1089-90. “ac our statute of limitations Ordinarily, begins course, is wrong. assumption, crue” on the date of the The aware that he potential plaintiff immediately [or that “a tort is is therefore on notice that wronged put [and] has been she] v. running. Harig the statute of limitations” is Johns-Man (1978). 70, 299, Products, ville 284 Md. 394 A.2d however, Thus, torts, assumption. of some belies this nature stealth, difficulties of detection subterfuge, when or other of the facts and cir plaintiff “blamelessly ignorant” leave a relief, him or her to the statute legally entitling cumstances or she plaintiff, to run unless he begin does knows, should diligence the exercise of reasonable through Doe, know, 342 Md. at 679 A.2d at wrong. supra, Risser, (quoting Poffenberger 677, (1981)); Trust 333 Corp., 681 Hecht v. Resolution A.2d (1994). 324, 334, 394, This “discov 635 A.2d 399 so-called Md. much an to the statute of ery exception rule” is not so limitations, Legislature, recognition as it is a §in intended to the word “accrues” 5-101 never employing inculpably of their plaintiffs close our courts to unaware 80, 284 Md. at 394 A.2d at 305 injuries. Harig, supra, 1018, 163, 69 93 v. 337 U.S. S.Ct. (quoting Thompson, Urie (1949) statute of limitations within (construing L.Ed. 1282 Liability holding Act and unreasonable Employers’ Federal on the of the notion that action accrues date inequitable harm)); unknowable see inherently to an exposure last known (when Hecht, 333, Md. at 635 A.2d at 399 also 333 supra, issue, necessary judicially it is determine limitations are at statute).6 trigger operation accrual occurred to when Otherwise, of consistently held that our statutes we have construed, strictly legislative and absent a limitations are to be attempt, argue attempt, cannot 6. Petitioners do not and indeed injuries. argument they only recently Such an were aware of their See, Washington, credulity. e.g., et Doe v. Archdiocese would strain 169, al., (1997). Md.App. 689 A.2d 634 “ of an “will not or exception, implied creation we allow ” v. equitable exception engrafted upon Garay to be it.’ (1993) Overholtzer, 339, 359, 332 Md. 631 A.2d (quot 615, 623, Booth Glass Co. v. 304 Md. ing Huntingfield Corp., (1985)); Corp. Burger Chef, 500 A.2d Wallco (1977) (traditional 207, 210-11, Md. 378 A.2d 1101-02 rule concerning tolling fairly of statutes limitations can be construction); termed one of strict McMahan v. Dorchester (1944). Co., 155, 160, Fert. 40 A.2d 315-16 III. Appellants persuade endeavor to us that Merzbaeher and equitably estopped asserting Archdiocese should be from limitations or alternatively, recognize this Court should an exception general to the statute of limitations under view, however, theory of duress. our meaning- there is no ful distinction between the two theories by Appel- advanced Rather, lants. estoppel duress and share a cause effect relationship. upon It is grounds Appellants duress that to estop seek Merzbaeher and the Archdiocese from asserting limitations.

Estoppel Duress a. Despite our historically strict stance on statutes of limita tions, “unconscionable, this Court first intimated in 1972 that inequitable, or fraudulent act[s] commission omission upon which another and has been relie[s] mislead to his [or injury,” may equitably estop raising her] a defendant limitations as a defense under a general statute limitations.7 493, (1959) Shockley, In Chandlee v. 219 Md. 150 A.2d 438 this Court (such 5-101) right recovery § noted that some limit statutes as employ and some new create a cause of action but a time limit aas 93, (such (1957), 112) precedent § condition as then Md.Code Art. (granting parties right of third sue or estate executors administra- any might against tors “in action which have been maintained Nevertheless, deceased^]).” species subject both of statutes are being by part tolled affirmative acts of waiver or fraud on the of the Atkinson,

Leonhart v. 219, 227-28, 1, 265 Md. 289 A.2d (1972). case, In that corporation Leonharts and their brought suit outside the thеn applicable period8 limitations Atkinson, account, against public alleged certified for profes sional malpractice. granted The trial court a defense motion for summary judgment grounds. on limitations In affirming decision, predecessors ‍‌‌​‌‌‌​‌‌‌‌​​​‌‌​‌‌​‌‌‌‌‌​​‌‌‌‌​‌​‌‌​​‌‌​​​‌‌‌​‌‍our declined to find conduct giving rise estoppel, noting to an that at no time did Atkinson “ask[ ] him, the Leonharts to forbear suit ... indi bringing cate he would waive the defense of limitations should [that] claim, make a later or that he induced them [Leonharts] by giving not to file suit assurances that he would settle Leonhart, 228, claim they might make.” 265 Md. at 289 A.2d at 6. later, Nyitrai

A few months a similar result obtained in Bonis, (1972), 266 Md. 292 A.2d 642 but for a different Nyitrai, reason. our predecessors recognized that the inducement for delay “where or the hindrance to the commencement of an action has operate ceased to before expiration of the limitation so as to period afford the plaintiff ample time thereafter in which to institute his limitations, prior running action to the statute he cannot excuse his failure to do so on the ground estop- (Citations omitted). pel.” Sandbower, Adm’r, defendant. Accord Cornett v. 235 Md. 201 A.2d Adm’x, (1964); Morgan, Jordan v. 249 A.2d 124 (1969). approvingly This Court nodded to the decision the United Appeals Scarborough States Court of for the Fourth Circuit in v. Atlantic Co., (4th Cir.1949). Scarborough Coast Line R. 178 F.2d 253 court agent erroneously

held that because railroad’s claim informed the regarding thereby claimant the amount of time he had initiate suit inducing delay applicable period him to his action until the limitations equity expired, estopped raising had the railroad from limitations as a defense. (1957, Maryland Repl.Vol.), provided § 8. Then Code Art. account, assumpsit, actions of actions of or on the case ... ”[a]ll commenced, years shall be sued issued within three from the time the cause of action accrued[.]”

535 299-300, 292 concludеd 266 Md. at A.2d at 644. The Court estoppel the to raise an although plaintiff entitled defendant, unreasonably delayed she had her suit bring grounds months to her action after the by waiting eleven Thus, action estoppel for the had ceased. the defendant was entitled to raise limitations as a defense. succinctly, will not toll the “equitable estoppel

Stated running showing of limitations absent a the defendant out not to or indicated that ‘held inducements file suit ” Glass, Booth supra, limitations would not be 304 pleaded,’ (quoting Nyitrai, supra, Md. at 500 A.2d at 645 645), at 292 A.2d at and that the his or plaintiff brought action within a of her reasonable time after the conclusion giving estoppel. events rise to the

b. Appellants point The inducements to which are Merzbach of alleged Although application er’s threats. a novel we, Maryland, rule in like First District estoppel Appellate California, agree that such an Appeal Courts Carswell, See DeRose v. is 196 Cal. application “plausible.” 1011, 1026, (1987); see also App.3d Cal.Rptr. Jones, Jones v. 195, 208, 576 A.2d N.J.Super.

(1990) (duress limitations, least, when, tolls the statute of as here, it is either an element of or inherent in the underlying action). Indeed, potential plaintiff cause tort can as much threat, delay be induced to his or action an by her affirmative promise. as he or she can a false case, factually

In a case similar to the instant the Supreme timeliness of a sexual Court California considered the one-year assault claim under statute of limitations set forth in Tort Act. As that court observed California’s Claims

“[e]stoppel commonly misleading most results from state- claim; about the need for or of a actual advisability ments (Internal fraud or the intent to mislead is not essential.9 omitted). fortiori, citations A estoppel may certainly be invoked when there are аcts of violence or intimidation that are intended to prevent filing of a claim. (Original emphasis).” Dist., R.

John v. Oakland 438, 445, School 48 Cal.3d Unified 766, (1989). Cal.Rptr. 948, 256 P.2d 769 951 New York takes a similar view of with respect limitations estoppel by minority duress in sexual assault cases. See Zoe F.G., 370, v. Frederick (1994); 617 N.Y.S.2d 208 A.D.2d 675 Roe, 620, (1993); Doe v. 596 N.Y.S.2d 192 A.D.2d 1089 Hoff- (1990). Hoffman, 608, man v. 556 N.Y.S.2d 162 A.D.2d 249 law, Under New York as in holding Nyitrai, our supra, plaintiffs to avoid seeking limitations on the of grounds duress must show that they brought their actions within a reasonable giving time after the events rise to estoppel have ceased. Zoe, 371, 675; Doe, 617 N.Y.S.2d at 208 A.D.2d at 192 A.D.2d 1090-91, 621; at 596 N.Y.S.2d at Hoffman, 556 N.Y.S.2d at 608, note, however, 162 A.D.2d at 249. We in none of these cases did the court permit plaintiff to escape limita- tions under a theory estoppel by of duress. otherwise,

Although Appellants suggest parallels California DeRose, the New York approach. example, For supra, estoppel 9. This view Maryland of is consistent with law. In Knill v. Knill, consistently this Court equitable observed that it has viewed estoppel as " voluntary party 'the effect of whereby conduct of a he is absolutely precluded equity, asserting rights both at law and in existed, might perhaps which have property, otherwise have either of contract, remedy, person, good or of as another who has in conduct, upon thereby change faith relied such and has been led position part acquires his for the worse and who on his some ” contract, corresponding right, property, remedy.' either of or of 527, 534, (1986) (quoting 510 Pomeroy, A.2d 549 3 J. (5th 1941)). Equity Jurisprudence, § 804 ed. The court also noted that "[ajlthough wrongful generally or unconscionable conduct is an ele- estoppel, estoppel may ment of an arise even where there is no intent to mislead, party prejudicial change if the actions of one cause a in the Knill, conduct of the other.” 306 Md. at 510 A.2d at 549-50 (citations omitted).

537 of California Appeal the Courts District of Appellate First “threat[s], and fеar claim that abuse victim’s rejected a sexual suit filing her from prevented defendant” harm from the did noth limitations because “she period applicable within the conduct defendant’s] [the even after her claims ing pursue at Cal.App.3d 196 ceased.” estoppel] to the rise gave [that v. Georgison, Lobrovich (citing Cal.Rptr. (1956)).10 P.2d 460 Cal.App.2d that: court observed holding, In so conduct offensive] alleged [the plaintiff] expressly “[the old years four approximately ... “when she occurred (1966-1973).’ Court old years until she was sufficient [, five weeks were held that supra] ... Lobrovich conduct an action after the to institute plaintiff time for the case, plain- [the In this estoppel to an ceased. giving rise an adult.” year had a to file suit as tiff] 1026, 242 at 377. Cal.Rptr. Cal.App.3d 196 cases, Appellants direct in above Despite holding the the in R., issue Although precise supra. attention to John our against minor’s claim R. timeliness of a John was the (“District”) acts of alleged for District Oakland Unified School respon- a under the doctrine by sexual molestation teacher the Dis- argument against raised estoppel dent superior, press here. argument Appellants to the trict is identical R., a review of the relevance John fully appreciate order to present serve to illuminate the facts and law will pertinent its controversy.

c. by his allegedly molested John R. was year-old Fourteen months, with the of several period teacher over a mathematics ample time to there is still court held that "[i]f 10. The Lobrovich period circumstances statutory after the the action within the institute so operate, plaintiff who failed do inducing delay have ceased Cal.App.2d Georgison, 144 estoppel.” Lobrovich v. claim an cannot 573, 460, (1956). with our view accords This 301 P.2d (1972). Bonis, 295, 292 A.2d 642 holding Nyitrai v. in last occurring act in February, later, 1981. Ten months December, 1981, John R. reported the alleged incidents to his father. John’s mother turn shared her son’s accusations with the District that same month. She was advised to let the police, District, who were promptly notified intervene. John’s mother then contacted an attorney, who advised her to wait for criminal charges to be substantiated prior to pursuing any civil remedy. here, For reasons not relevant the criminal charges against the teacher eventually were dismissed. See R., John 48 Cal.3d at 442 n. Cal.Rptr. at 768 n. P.2d at 950 n. 2.

Thereafter, parents John’s brought suit on his behalf and in their own right against the teacher and the District. At the outset, trial’s judgment was entered favor of the District on counts, alia, all based upon, inter limitations. law,

Under California limitations ordinarily do not accrue against minor a until he or she age of majority, reaches after which time action has brought to be year. within one (West 1989). § See Cal.Civ.Proc.Code The California Act, however, Tort Claims affords minors no grace period. 911.4(b) (West §§ See 911.2 and Cal.Gov’t Code Any claims accruing in favor of a minor against public entity must be made in writing within 100 days date the action accrues. § that, 911.2. Failing Cal.Gov’t Code Cal.Gov’t 911.4(b) § requires that leave to file a late claim be Code made within one year of the action’s accrual date. John R.’s parents first filed suit some fifteen beyond months the date Thus, John R. was last assaulted. the trial court held that limitations barred all claims the District.

A California intermediate appellate reversed, court conclud- ing that at least with to respect issue, the limitations the plaintiffs should enjoyed have the benefit of the “delayed R., discovery” doctrine. John 48 Cal.3d at 256 Cal.Rptr. 769 P.2d at 951. The District appealed that decision. Though questioning the soundness of the appellate lower court’s application “delayed discovery,” the Supreme Court of California nonetheless thought a remand to the trial court whether the determine the court could in order so that was under asserting limitations estopped from should be District equitable of vicarious theory called a fairly be what could address nor we neither incidentally, theory estoppe11—a IV., Part today. See adopt infra. such an to undertake trial court failed the

Noting claims, California’s R.’s the timeliness John analysis of with be made findings factual ordered that highest court “(1) by in fact made threats were any to whether respect (3) ceased, (2) threats teacher, such when the effect after the a reasonable time acted within plaintiffs whether the It is this factual ceased.”12 effect of the threats coercive opined Supreme holding, Court of California 11. In so case, plainly plaintiffs it would be "assuming can establish their only escape liability because the inequitable permit the [District disclosing preventing from his victim threats succeeded teacher’s filing against the [District until the time for a claim the molestation that, applying equitable elapsed. purposes of We conclude for had tolled estoppel, filing against [District the time for a claim prevented plaintiffs period from during that the teacher’s threats pursuing their claims.” 438, 446, Dist., 48 Cal.3d R. v. School John Oakland Unified 766, 770, (1989). Cal.Rptr. 769 P.2d R., holding alleged by plaintiffs in its light as John facts raising pause. Equitable estoppel will bar a defendant from gives us voluntary long conduct as so as the defendant’s limitations a defense applicable plaintiff filing within the limitations prevented the from suit within a reasonable plaintiff pursued his or her claim period, and the prompting the following of the events of time the cessation amount however, R., expressly acknowledged plaintiffs estoppel. The in John (10) parents ten months acts were disclosed to the that the teacher’s plaintiffs delayed and that the molestation had terminated after the against charges the teacher pending resolution of criminal suit their attorney. claim the teacher of their The first on the advice (15) brought after the teach- until fifteen months District was thus alleged ceased. er’s conduct had delayed plaintiffs’ conceivably could have the teacher’s actions While period beyond day set forth in Cal. Gov’t the 100 limitations suit Code 911.2, respect plaintiffs’ with to the § no such assertion can be made year required one as apply leave to file a late claim within for failure Indeed, 911.4(b). plaintiffs’ instruct- § own counsel Code Cal. Gov’t proceedings. of the criminal to file suit until resolution ed them not aside, plaintiffs way prevented conduct in no the defendant’s That R. disclosed the abuse. filing within the two months after John suit inquiry that Appellants maintain improperly left unre- solved in Thus, the instant case. argument goes, a remand necessary. is We see differently. it

IV. critical, view, There is a our dispositive differ ence between facts of John R. and the case judice. sub running of the California statutes was not by tolled John R.’s minority, and the cessation of his teacher’s conduct triggered Thus, statutes’ march finality. towards John R. and his parents arguably were deprived of a portion of their limita period by tions alleged acts and omissions of the defen dants. But see n. supra. case, the instant Appellants cannot and do not they claim that Indeed, were so deprived. (1995 Repl.Vol., Md.Code § 1996 Supp.), 5-201 of the Courts Proceedings Judicial provides Article in relevant part: “§ disability. 5-201. Persons under a (a) Extension time.—When cause of subject action to a limitation under Subtitle 1 of this title accrues favor of a minor or mental incomрetent, that person shall file his action within the lesser of years three or the applicable period limitations after the date the disability is removed. (b) Exception.—This section apply does not if the statute of limitations has more than three years to run when the disability is removed.”

Appellants concede that none of them had contact with Merzbacher whatsoever after reaching age of majority, and some of the Appellants’ last contact with him occurred Thus, well before that time. by admissions, their own Appel- lants enjoyed the full period limitations provided to by them Assembly. General

Nonetheless, Appellants attempt to elude this inconvenient different, fact two First, but related routes. they maintain general that “as a ... rule whether a cause of action is barred otherwise, Stated there was no relationship between the cause/effect plaintiffs’ 911.4(b). defendant's conduct and comply § failure to with question a mixed ordinarily limitations is by the statute when the jury only be taken from may fact that law and suit was a matter of law as court determines Weisheit, time.” James proper within the instituted Plati- Impala see also (1977); 482, 41, 46, 485 367 A.2d Md. 887, Sales, 323, 903 296, 389 A.2d Md. Impala num v. 283 conduct of (1978). although the that contend Appellants began statute of limitations before the ceased Merzbacher threats claims, Merzbacher’s the of run their effect least, below, very or at the of the actions filing until the lasted Kovens, supra, v. find. See O’Hara jury could so a reasonable on a of fact which 301, (questions 1323 503 A.2d at 305 Md. at the fact decided turn are to be defense will limitations ‍‌‌​‌‌‌​‌‌‌‌​​​‌‌​‌‌​‌‌‌‌‌​​‌‌‌‌​‌​‌‌​​‌‌​​​‌‌‌​‌‍finder). undergird reasons policy the maintain that also

Appellants in the tolling militate towards limitations statutes of ing view, are not those policies Appellants’ In the instant case. fraudulent, not the when, here, claims are аs their implicated willing testify, available and are presently witnesses accrue to fresh, would and no inconvenience is still evidence v. Mas Doe generally See or the Archdiocese. Merzbacher Corp. Pennwalt 1089; kell, 689, A.2d at supra, 342 Md. at 679 Nasios, 1155, 1158 (1988); Hecht 437, 433, A.2d v. 314 550 Md. 394, 324, 333, A.2d 399 Corp., Trust 333 Md. 635 v. Resolution 656, Corp., v. Sales (1994); Pierce Johns-Manville Elec. v. Potomac (1983); Goldstein 665, 1020, 1026 464 A.2d (1979); 1064, Co., Power Md. A.2d Corp., supra, 284 Md. at Prods. Harig v. Johns-Manville 394 A.2d at 302. foremost, we First and for several reasons. disagree

We princi- applicable under the of law that as a matter conclude acted Appellants no could find that jury ples estoppel, the cessation following of time period within a reasonable no absolutely evidence There was conduct. Merzbacher’s that he appellants threats to the any made during consequently overt acts after engaged age attaining their which followed three-year period filing timely actions. Appellants majority, prevented Minority is a valid excuse for suit within commencing year three general period; limitations unsubstantiated fear of not. retaliation is

Under this Court’s if holding Nyitrai, supra, cessa- tion of the defendant’s conduct affords plaintiff ample time thereafter in which to prior institute his or her action to the limitations, running of the statute of he or she cannot raise an estoppel to bar argument a defense of limitations. Md. at 299-300, 292 A.2d at It if follows that the alleged run, conduct begins ceases the statute the same holds before true.

Further, Maskell, we Doe as indicated in a supra, statute of limitations is than nothing legislative more judgment about the amount time needed to initiate a suit.' 342 Md. at 689, 679 at 1089. Appellants implore A.2d this Court to ignore judgment its own. substitute Recognizing pecu- liar years difficulties visited those of upon tender who are injured in minority, Legislature their our already has deter- mined the amount of reasonably bring time needed to an reaching majority. action after the of age cannot disturb We determination. Also, whether or not concerns the statutes of prompting limitations are absent instant the case is beside the quite point. it Again, duty is neither the nor province the this Court to a legislative rewrite enactment it simply because is socially judicially useful or to do That expedient so. function to belongs solely Assembly. the General Accordingly, we hold that in view of the fact Merzbach- er’s alleged Appellants threats ceased before age majority, reached the their failure maintain to their actions the applicable within limitations after that period date was unreasonable as a matter of law and absolutely bars their against claims Merzbacher.

Y. also contend Appellants alleged that Merzbacher’s threats should be to imputed similarly prevent the Archdiocese to it claims. Appellants’ as a defense limitations raising from against are barred those claims conclude Because we the against barred Merzbacher, claims are likewise Appellants’ Thus, the issue of whether need not reach we Archdiocese. to the Archdiocese imputed be conduct should Merzbacher’s tolling principles. equitable applying for the purpose AFFIRMED, COSTS. WITH JUDGMENTS RAKER, JJ., dissent. ELDRIDGE and ELDRIDGE, dissenting. Judge, that allows a result majority reaches he threats, intimidation which violence and the from

profit against actions maintaining plaintiffs prevent used abuse which Merzbacher rapes and repeated on the him based It is unconscionable. This result plaintiffs. upon inflicted More opinions. prior this Court’s with is also inconsistent public policies over, in accord with the result is extraordinary limitations. Under statutes of underlying estoppel apply principles I would presented, сircumstances pursue in these cases to plaintiffs and allow duress and/or Merzbacher.1 against their civil claims

I. summary judgment properly whether determining evidence, cases, all this Court view in these must granted therefrom, moving parties. inferences derived duress, interchange- spoken of estoppel and while principles of 1. The Estoppel pri- focuses majority, analytically different. ably by are defendant, “operates technical and as a marily of the on the conduct asserting rights where it would prevent party from his law to rule of rights.” Savonis v. to assert those inequitable unconscionable be and 521, (1966). Burke, 316, 319, principle of The 216 A.2d 523 241 Md. hand, duress, of the reason- state of mind focuses on the on the other plaintiff be policy should not that a plaintiff. It reflects able product of reasonably was the which penalized for conduct or inaction cases, view, area where the two my involve an present in duress. The applicable. Accord- principles are overlap where both principles separately. principle majority, each I shall not discuss ingly, like the 544 Baltimore, v. Hosp.

Goodwich Sinai 185, 207, 343 Md. 680 of Lane, 1067, B E G & v. (1996); 34, 1078 Co. 43, A.2d Md. 338 Pool, 307, Rose v. Fox (1995); 351, 380, 656 A.2d 311 335 Md. 906, Lubow, (1994); Mortgage Merchants v.Co. 643 A.2d 920 208, (1975). A.2d in facts these for presented, cases were the most part, through deposi tion testimony plaintiffs.2 of twelve Their testimony was at no Thus, time disputed discovery.3 affidavits for purposes facts, appeal, this we must assume that presented as through below the plaintiffs’ deposition are testimony, true. Co., See Sheets Brethren Mutual Ins. 638-639, Md. (1996). A.2d A. A brief review of deposed plaintiffs testimony each is as follows.

Jane Doe While Jane was a Community student the Catholic Mid School, dle continuously Merzbacher fondled her front of other students. After Jane informed her father Merz class, bacher had hеr bra unsnapped during Jane’s father to the complained principal, and warned not to Merzbacher (E. 153).4 daughter days later, touch his A again. few actually 2. plaintiffs, only While were fifteen there there were twelve deposed. plaintiffs who were One committed suicide before a taken, deposition could be and the other two were unavailable for deposition. taken, deposition 3. The defendant Merzbacher's was he did plaintiffs’ depositions. contradict of the facts set forth in the pleaded privilege against the Fifth Amendment’s self-in- response questions during crimination most of the asked his deposition. Although normally opinions we do not in set forth references Court, light record extract before this nature extreme cases, repeatedly Merzbacher’s conduct which testified to in these I pages have "E” decided do so. references are to the record extract in this filed Court. Merz- gun head her. raped held to Jane’s and Merzbacher a 156). (E. forced a male student her. rape also bacher her to told began crying, resisted and Merzbacher When Jane 155). (E. bitch, I kill you.” before up, you fucking “shut you “if holding gun, the Merzbacher told Jane While still this, you your I’ll kill I’ll kill anybody about and ever tell 156). (E. Further- an fucking family eye.” in a blink of whole more, testified that Jane the that I told father about my was furious

“[Merzbacher] said, classroom, he tell guy, in the and he told this incident this father came to girl’s I did to last who her what ... told me complained guy about me [and] school and hysterical, I girl’s had killed father. And was that he to kill upset going I can remember so that he was being and (E. 154). my family.” occurred, “drove after this incident Merzbacher year

About slow, gave he in his car like real and neighborhood] [Jane’s something. like ... to kill going that look he was me me that, And, and having nightmares ... I was such bad after suicide, no I tried to I didn’t see that’s when commit because my I father. my out. I couldn’t tell mother. couldn’t tell way (E. 159). I anybody.” tell couldn’t Doe

James period during taught which Throughout Merzbacher School, Community Middle Merzbacher James at the Catholic in front of private James’s buttocks and other areas fondled him, students, forced him fondle female “raped” other 116-118). (E. abused physically Merzbacher also students. him, arm, at throwing his books by kicking twisting James harm, to beat threats of Merzbacher forced James By him. 115). (E. 98, stu- evening, One several other students.5 up up if or beat testified that he did not fondle female students James students, "hurt” “get" him and of the male Merzbacher would several (E. grade, was aware him. Since the seventh James gun possession, and would use it at had a in his that he Merzbacher fact, occasion, gun one James saw shoot at on Merzbacher time. (E. 115), signs as students around in his car. street Merzbacher drove dents home stopped driving Merzbacher’s after around with There, James, him. “raped” described who incident as follows: forced me the bed and I “[Merzbacher] on said, John, Mr. what are him you doing stop. and asked said, said, John, And he shut up, just go along with me. I Mr. said, don’t. ... ... just He shut take what’s up [James] and 118). (E. kill coming you.” or I’ll “raped” Merzbacher also James on the To evening his Confirmation. ensure his silence, you [speak] Merzbacher told James that “if ever a (E.120). anybody, word of this to ... I’m kill going you.” to Merzbacher continued to terrorize and threaten James after school, he graduated middle him not tó warning “breathe (E. 120). anybody. a word of this to I can always get you.” no James told one the or physical sexual abuse because ... always get “[t]hreats were made that he to could me 120). (E. time.” his Despite knowledge that Merzbacher’s “wrong,” Merzbacher, acts were James “was afraid of and I ashamed, (E. 125-126). I my and feared for life.”

Angela6 first whеn Angela met Merzbacher he her boyfriend drove Bryan to meet her on a street corner. at A parking After an market, & P in the got Merzbacher back seat of the car with hair, out Angela, grabbed pulled gun began her a and to rape (E. 264-265). her. car, After tried to out of Angela jump him, Merzbacher warned her that if she continued to resist he off,” fing would “blow head and if [her] she ever told (E. 265). her, anyone, he would kill her sister Bryan. and holding gun, Bryan Still Merzbacher then rape forced 266). (E. months, next Angela. During eight Merzbacher raped Angela approximately thirty times either at the Catholic Community Middle School at the Rockaway Beach Fire (E. 267). Department. Each time Merzbacher would tell tell Angela anyone family. not to or he would kill her On one occasion, Angela’s mother overheard make inap- Merzbacher plaintiffs’ I have deleted all references to actual surnames where they may appeared deposition transcripts. have in the Thereaf- over the Angela telephone. comments to propriate into Merzbach- ter, Angela’s Angela getting mother saw when Essex car, community through chased car er’s she incident, Merzbacher After this police. then called and swimming pool Angela’s home bottles into the threw beer if she Angela, warning her continued threaten and was, him, I was or where “no when it how old reported matter 269). (E. lived, my I kill and family.” that he would me Mary C. would Mary eighth grade, C. was in Merzbacher When breasts, her, skirt, her shove the up pinch lift her fondle (E. 328, smoking vagina. a into her pipe stem of C. at the year, raped Mary also During this Merzbacher (E. 344). After raping Beach Fire Rockaway Department. foot, her, to the his pinned her hair floor with Merzbacher rape Mary male her. C. was aware forced three students had in his and that “he gun possession (E. 346). point.” Shortly аfraid to use that wasn’t it thereafter, storage in the Mary Merzbacher C. approached resisted, kissing her. she began room of the school and When wall, put he her his hands around her slammed throat, pulled and told her if ever from him away that she 347). (E. again, “would kill Merzbacher continued to he her.” threats three to four times approximately make similar to her father, a He also threatened the of her a safety week. occasion, officer, City police Baltimore several times. On one asked, C.], “[Mary pulled out of class and Mary Merzbacher C. you? You’re are your doing blabbing father here? not what’s 330). (E. I’ll nosey He not or kill him.” get better too warned, head, to her Merzbacher also “Who’s Holding gun a hole in head— gun you bigger do think could blow a someone’s added, “My gun blow a your father’s?” He hole mine or could ” (E. 330). Johnny Law’s head.... big so occasion, C. after approached Mary On another Merzbacher she ex- pregnant. asked her if When school and she was told her she “better not pressed uncertainty, Merzbacher 347-348). (E. that, were, if she would “shoot her.” be” and he that, He further if Mary by telling threatened C. her she were [her], pregnant, he yank would “shoot it out with hanger a and death, let bleed to [her] he would knock down [her] stairs.” After picking up Mary C. and her date a school dance, Merzbacher also that if any- threatened she ever said (E. her, thing about what he had done to he kill her. would 349). Mary report C. did not Merzbacher’s conduct to the authorities because I had “Merzbacher and an If agreement. shut, I kept my mouth he Mil wouldn’t me. I did certain If do, alive, that he said I things stayed and I carried (E. 351). with me.”

Elizabeth occasion, revolver, pulled On one Merzbacher out his spun chamber, it pointed pulled at Elizabeth’s face trigger. gun did Although discharge day, on that Elizabeth recalls another аfternoon when Merzbacher also played “Russian Roulette” and a gun shot loaded above the students, (E. heads of several “I’ll yelling fucking you.” kill 459). Elizabeth separate also described a incident when Merzbacher book, a

“had a set of fake books and he had bottle ..., before, I had never tasted alcohol sherry gave and he sherry my me this and then he removed underwear and eleven, me on his chair. I raped while he sat desk was pattern repeatedly. he used that storage Sometimes was when also out pull point room he would his revolver and (E. 462). my raped it at head when he me.” “had qualms pulling gun] no about out and [the around____” (E. it, know that it letting you he had afternoon, raped storage One Merzbacher Elizabeth in the shouted, room her head. gun your with He “I will blow out if ever you anyone brains tell what I have done to fucking any point you, I I you get in time. will find will come and (E. 463). Elizabeth, “I you.” Merzbacher also warned will father, kill I kill your your family. girl. will You’re a bad little I fucking Who believe will blow you anyway? would [B]ut 463). (E. had the abuse years Several after out.” brains your Community Middle ended, returned to the Catholic Elizabeth Eliza- Merzbacher. about principal with spoke School and several “brutal” to had been her that Merzbacher beth warned students, raped frequently that he had and and female male concern expressed Elizabeth importantly, Most her. teaching at the school. to continue be allowed Merzbacher said, “Liz, forget should you I think principal response, 466). (E. life, change.” people your on with get it and Doe Mary basis, her pulling up Mary daily on a fondled Merzbacher (E. areas. private her in her grabbing skirt with a stick and 192). asked play, a school Merzbacher for During a rehearsal mug. fill coffee up and his storage room go to the Mary Mary in the approached male student аnd a Merzbacher fondling behind, began and Merzbacher storage room Mary’s to take the male student instructed her. He then knife, Holding long-bladed of her. top on get clothes off and if did not would kill her she that he Mary told Merzbacher and he “took the knife then screaming. Merzbacher stop he told me my next to head and banjo that was stabbed a (E. 193). aOn face would be next.” up, my if I shut didn’t school, sat on afternoon, after kept Mary Merzbacher separate breast.7 bit her on the her, her blouse and unbuttoned top of help for someone to screaming “I started Mary testified that going he was up I’d better shut me, me that he told I scream stop if didn’t out. And that my brains fucking blow (E. 196). After this dog.” family my kill my would ing he occasions that on several incident, Mary reminded kill me and authority, that he would with anyone “if I went to (E. 198, I was ...” matter how old family ... no my Mary, principal entered top on was still 7. While Merzbacher his door not want warning Merzbacher that she After did room. locked, 196-197). (E. disciplinary No principal the room. left action was taken. Steven Steven’s first encounter with Merzbacher inwas the sixth grade when Merzbacher suddenly Steven, started punching him throwing (E. the locker and beating him up. 378- 379). Thereafter, Merzbacher would force Steven to engage (E. 380). in oral sex with him after class. This type of abuse continued through year years, the next two and would (E. frequently occur in front of other teachers. Merz bacher would threaten Steven him telling that Merzbacher had connections to the “mafia” and to other “hit men” who get time, could him at any and by showing Steven where he (E. 380). had shot his gun through the wall. once, More than Merzbacher point Steven, would gun telling him if “you anybody, ever tell I’ll you. father, kill I’ll kill your I’ll kill mother, your (E. 381). I’ll your kill whole family.” principal once confronted Merzbacher about his abuse Steven before a classroom of students. In the prinсipal’s presence, Steven, Merzbacher tie, choked pulled his punched him, him “see, (E. kicked and said I’m not hurting him.” 381). After witnessing abuse, this the principal merely re “Oh, John, sponded, it.”8 stop Steven, According to he wit nessed Merzbacher engaging sexual with intercourse (E. 386-387). principal. After began Steven telling other incident, students about this Merzbacher put his arms around said, Steven’s neck and “I’ll you. loll And you don’t tell anybody---- (E. 388). you’re crazy And a bastard.” Even after got Steven California, married and moved to he did not report Merzbacher father, because “he was going to kill my mother, my (E. 396). wipe my out family.” whole

Bryan Bryan first met Merzbacher when he was returning fireman’s coat to the Rockaway Beach Department. Fire There, Bryan recalls that “cuss,” Merzbacher “laugh,” would 8. A similar event occurred when another Sister entered Merzbacher’s grabbing classroom while he was "gave students. The Sister him a like, just (E. 385). stop look ... John it.” No further action was taken. old students. year fourteen with thirteen and beer and drink “cool,” moved (E. 299).9 Bryan as Viewing Merzbacher Bryan lived at home. While abuse escape physical him to with Bryan Merzbacher, would fondle frequently with on the hold me down my hair and byme the back “grab and (E. 301). would Merzbacher also in the firehouse.” table pool (E. 303- Bryan’s girlfriend. raped to watch as he Bryan force conduct, 304). report did not Bryan this abusive Despite because Merzbacher some off, to have he would threaten you pissed John

“[i]f to you and beat Baltimore come down thugs from South threats, I threats mean the specific more But his death. I honest- firmly—that that I I him make and overheard better than him, probably I know and John did believe ly also a there was do.... [B]ut of those students the rest evil, ... across ... that he would sit ... pure look of mad, he and and he would be at dinnertime table from me it air and let sling upit into the plate and glass would take a at, if it and sitting I was glass table that bounce off would stare at and he shattered, happy, was all the more he mean, he sat his eyes—I in his mouth and cigar with the me worse look nobody could you, looked at there and in you. fear wanted to instill when he than John Merzbacher her, kill he would Mary told that he [C.] he night And that, as every I word of believed drinking, had been mean, in my I I have no doubt he told me. night well as the that, and he used to when he told me he meant it mind that to kill me or wanting a matter of it wasn’t tell me betrayal,----he drive him to do it or anger would whether Community Middle Bryan in the Catholic Although was not enrolled (E. 298). School, Bryan frequently Merzbacher’s class. he attended in the crotch or "grab [students] Merzbacher would described how (E. ...” over the hood push up against the car and lean them them occasion, up behind Bryan witnessed Merzbacher walk On one buttocks. and on her place his hands on her breasts principal and (E. 310). away.” simply "giggled and backed response, principal teacher, was a confronting who another school Bryan recalls also and other stu- drinking with Merzbacher priest, he was beers when Merz- began drink beer with According Bryan, priest dents. (E. 311). young and the students. bacher would have to kill me to prevent jail. himself from going And this is what he told me. And he told me this time and (E. 303-304). again____” time One evening when Bryan and Merzbacher were sitting car, Merzbacher’s Merzbacher “pulled that hammer [of the gun] back that night to where a flip of his finger would have blew my skull apart, and he told me that if I ever said (E. 304). ... anything he would have to kill me.” After indicted, Merzbacher Bryan nightmares “had where he’s my now, and, after children ... I up wake in a panic to where (E. I 310).10 don’t I’m realize that still in a dream.” Katherine Throughout period when Katherine attended Merzbach- class, er’s her, would frequently grab push her blackboard, put his finger into her vagina, and breasts, (E. 420). grab her in front of the class. Katherine specifically described one incident where

“I was sent in there storage [the room] wash his coffee out, I mug and when went and was washing mug his coffee out, in he came and started kissing my neck, kissing down my hair, neck and grabbing my and that’s when the original me, threat you know, he said to mouth, ‘Shut if your you ever breathe a word of anybody this to no matter where are, you are, no matter how you old I you will track down and I will blow your fucking head off.’ ... I and was terrified I because didn’t know what next was going to (E. 420). happen.”

Katherine did not report Merzbacher’s conduct “I because was you terrified. go through that, mean, When something like I I Bryan witnessed gun Merzbacher shoot his on two occasions. On occasion, gun the first through Merzbacher shot a the front windows of School, Chesapeake High shattering narrowly missing windows and janitor (E. 313). occasion, lobby. a inside the school separate On a stopped Merzbacher girls, his car to talk with some and a van hit him van, attempted behind. When the men to exit the Merzbacher off, shot five bullets into the van. After the van drove Merzbacher went get hours, gun. home to a searching sawed-off shot After for Merz- parked (E. 313). bacher found the van and shot it seven times. head lay my IWhen petrified. in I still am am terror. still nightmares.” I have man’s face and night, I see that down at Katherine even (E. 421). to threaten continued Merzbacher Approximately from middle school. had graduated after she and said her times, neighbor approached Katherine’s twenty hello, ever and don’t Big Momma said to tell “Mr. John (E. 423). thereafter, spotted Merzbacher Soon forget.” and “with street, down his car slowed crossing Katherine stopped that little chuckle he has and conniving grin evil me, ground If the petrified it me. over at and and stared in, I would I crawled could have оpened up have and could (E.423).11 have.”

Sharon fondling uniform up Sharon’s began pulling Merzbacher behavior contin grade.12 in sixth This she was her when Commu years three at the Catholic throughout Sharon’s ued grade, in the seventh Sharon was Middle School. When nity approxi her hair pull smack her and began to Merzbacher 67). (E. had after school evening One once a week. mately summer, and a male drove Sharon for the Merzbacher ended to sit on forced Sharon around ‍‌‌​‌‌‌​‌‌‌‌​​​‌‌​‌‌​‌‌‌‌‌​​‌‌‌‌​‌​‌‌​​‌‌​​​‌‌‌​‌‍his car. Merzbacher student He then glass a wine. lap male student’s and drink Bar,” attempted pull the car at “Sherri’s Show stopped (E. struggled, When Sharon top. down Sharon’s tube out pulled gun and he “got glove box] [the face, head, me my and he told gun my up put and he were anyone if I ever told what we again if I did that ever me, ...my him he would blow touching or about doing out (E. 68). brains out.” fucking school, middle Merzbacher year final

During Sharon’s the coffee storage room where approach to her began that he when she learned fear of Merzbacher escalated 11. Katherine’s believed, 911," could, wherever she find her "for and Katherine worked (E. 425). living. of other "Candy Bar” in front to Sharon as Merzbacher also referred 12. (E. 63). students and teachers. machine was located.13 would privates He fondle her her (E. 73-74). and rape every day. her almost Sharon testified I mean, first would him. I fight “[a]t I wanted him to I stop. try didn’t want—I would to keep legs closed real my he tight, just and would on me and hair pull my hit and smack if I me more and threaten to kill me do didn’t let him what he (E. 73). do. just stop.” wanted to He wouldn’t Merzbacher “in frequently gun would hold a and face [Sharon’s] [her] 72-73). (E. head.” also Sharon remembers Merzbacher tak ing her he “pulled my to firehouse where off and pants then me, he pants go took his off and he started to I inside and (E. 75). just—I crying started so much.” Prior to this meeting, Merzbacher threatened Sharon that unless she mеt (E. firehouse, 76). him in the shoot boyfriend. he would her Merzbacher also Sharon threatened when she returned after graduation visit her former home room During teacher. visit, this Merzbacher her spotted and “he came running out grabbed pushed and he me and I him I away and had tears in I I my eyes told him no longer and that was a student there anymore____ he can’t touch me He me grabbed lockers, my hair and he threw me up and he told me, anything you ‘I can do I at any want time whenever I (E. want,’ away.” then he pushed me Mike Doe began abusing Merzbacher first Mike when Mike was grade Community sixth at the Catholic Middle School. Merz hair, pull punch arm, bacher Mike’s him in would smack him in head and him in private touch his areas and his (E. 232). throughout buttocks.14 This abuse continued disclosed, testimony As the several witnesses it was Merzbacher’s pattern up mug direct students to or clean fill his coffee in the room, storage storage room. After the students would enter the Merz- approach sexually physically bacher would them and abuse and/or them. touching principal 14. Mike witnessed also Merzbacher the breast papers. when she entered the classroom to hand some that Merzbach first became aware when Mike grade, seventh year, Merz following The possession.15 in his gun er had a in oral sex engage to force Mike attempted twice bacher four or five in front of The first incident occurred with him. storage in the occurred and the second incident boys, other 234). (E. then told Merzbacher alone. room with Merzbacher incidents, no these anyone if he ever told about Mike he would living, was or where he was how old Mike matter (E. 234). these reported Mike never kill him. find Mike and would kill told me he because “[h]e incidents to the authorities 234). (E. Merzbacher threatened our lives.” my father. He graduated even after Mike to threaten Mike сontinued Merz party, graduation At a school mate’s middle school. behind, gun a to Mike’s put Mike from approached bacher your fucking said, forget, Mike. I’ll blow and “Never head (E. 235).16 time I want to.” brains out Melody Middle Community Melody attended the Catholic When the hall from School, in an room across empty she studied (E. 512). she fre- Consequently, Merzbacher’s classroom. sexually abusing physically witnessed quently student viewed one female Melody specifically his students. down to her with her underwear’ lap on Merzbacher’s sitting over concern responded Melody’s principal ankles. having “was her that the student by telling this incident (E. Upon in her underwear.” with the elastic problem Mike, on her face principal “had an embarrassed look According to (E. 238). right out of the classroom.” and she backed seeing in the wall in the During year, Mike recalls a bullet hole this (E. 234). Merzbacher’s classroom. back of his life threats on described the effect of Merzbacher’s 16. Mike further as follows: years, you have been in a living them I mean unless in fear all "This fear, situation, you like to have to live don’t know what it’s similar else, killing killing you someone worry to have to about someone being something you to tell someone but having to, want ” (E. 240). your life.... have a threat on able learning Melody complained had to the Merz- principal, bacher threatened her several times. example, For he told her that would he “blow if fucking [her] head off” she did not (E. 513). stop complaining. Several of Merzbacher’s students also Melody attacked when she was going the and up stairs my “held me around so I neck couldn’t turnaround to see them, they and threw me on ground my down and lip was my busted and nose was busted. And they my held head they kept hitting down and me and punching—kicking me----” As they the children walked said away, that it (E. 518).. “came from John.” approached Merzbaсher also Melody on one occasion “held the gun right [against and me] if I my shut, and told me didn’t ... I keep mouth wouldn’t worry my have to about having library. studies I’d be (E. 519). in my fucking coffin.” years Even after Melody graduated, she never discussed her Merzbacher with husband because “I too I was scared---- believed he would find my me and kill kids. I I believed him. that he believed would was, find me no matter where what year he it was. I believed him my with all heart that he would find kill me and me and (E. 523). I my and still family, believe that.” B. January Merzbacher was and charged arrested with counts of rape several and sexual child abuse. Thereaf- ter, plaintiffs enough most of felt safe to come forward and families, with their discuss the abuse either State’s Attor- ney, time, a private attorney police. or the Until this howev- er, the who plaintiffs, repeatedly were threatened at gunpoint silent, safety, remain still believed their and families, their in jeopardy. testimony As the set forth demonstrates, above Merzbacher had repeatedly warned them that, they reported him, if he could find “no them matter where were” and kill they would them and their families. Mike Doe testified that “[u]p [when was arrest- Merzbacher ed,] I had afraid my been because he had life I threatened my lives, wife I my feared for and feared for but family’s when I handcuffs saw him with his on and all these other people were coming forth and in jail, he was I felt I was safe enough (E. 236). to come forth----” Mary C. testified that “I think [that has not threatened me since I came for- ward] because he is in custody. Some type type of custody. I think if he were free to walk the streets without being observed, (E. 352). I I think would have been contacted.” Melody stated: “I came forward ... jail, when he was in when (E. I knew he had already been up.” locked Bryan came forward days “four after story [about Merzbacher’s (E. 308). was on front page arrest] Paper.” Sun Angela reported the arrested,” abuse when “Merzbacher was (E. 270). “figured jail.” she was in he report- Katherine ed Merzbacher “after he was arrested and I then felt like (E. 430). there was a of safety little bit there.” that, Several plaintiffs also testified because of large group former students who came forward report Merz- bacher, there was “safety numbers.” (E.g., Elizabeth’s testimony at E. Katherine “I testified that would have (E. 430). never come out by myself with this. Never.” State’s Attorney and the police detectives also assured many of the plaintiffs of their safety continued and protection from if they disclosed the abuse. Elizabeth stated that “I have the protection of the State’s or Attorney police me if I assuring so much as fall up step, Merzbacher is going (E. 477). to be the first person they look toward.” And Jane Doe testified that “[the assured me I detective] that would be said, safe if I told him. worry, He don’t you’ll totally be safe---- I assumed arrested, going [Merzbacher] be (E. 166). and then I’ll be safe.”

Thus, only after Merzbacher was arrested and after the plaintiffs were assured of safety, their did they believe that they could come forward with their claims against Merzbach- er. absolutely There is no evidence indicating record that, time, prior to this the plaintiffs did not they believe that coidd come forward without endangering themselves or their Moreover, evidence, families. in light of the the plaintiffs’ fears obviously were not unreasonable.

558

II. A. that, barring held where this Court years ago, Almost 150 unjust be limitations “would ground on the an action be sanc limitations “should not the defense of inequitable,” Carr, (1848). 430, 440 v. tioned,” Steuart 6 Gill. the posi- taken repeatedly this Court has specifically,

More waived the be deemed to have that a defendant will tion relying upon estopped or will be defense of limitations “asked the when thе defendant of limitations running him,” Leonhart v. suit bringing to forbear [plaintiffs] (1972), Atkinson, 228, 1, when “the 219, 289 A.2d 6 265 Md. ” Booth suit,’ file inducements not to ‘held out defendant 615, 624, A.2d Corp., 304 Md. 500 Huntingfield v. Glass Co. Bonis, 295, 300, Nyitrai v. (1985), 266 Md. 641, quoting 645 also, Morgan, (1972). e.g., Jordan v. See 642, 645 292 A.2d 124, (1969); Adm’x, 132, 122, 129-130 A.2d 252 Md. Sandbower, Adm’r, 201 A.2d 235 Md. Cornett v. Carr, alia, supra, v. inter Steuart (1964) (relying upon, Ziats, 167, 192 v. Industries 440); 232 Md. Bayshore atGill 493, 495, 502- Shockley, (1963); Chandlee A.2d 487 (1959) defendant, 438, 439, that the (finding A.2d suit, file plaintiff and induced” “requested who from de- estopped limitations or was the defense of waived limitations). ground on the fending gun young holds a to his and child abuser rapist aWhen victim, kill as well as to shoot the head and threatens victim’s discloses family if the victim ever of the victim’s the members abuse, rapist and abuser the conduct rape more to file suit. It is an inducement not clearly amounts to bring- “to forbear “askfing]” of the victim equivalent the than Atkinson, supra, at Leonhart v. ing suit.” form of obviously in court is a an action Bringing at 6. A.2d any disclosure. disclosure, threats covered and Merzbacher’s a few, holding than stronger if inducements any, are There Furthermore, the under. head. person’s to a gun loaded were the inducements by plaintiffs, forth the evidence set and did continuing, their effect not end before the authorities custody. took Merzbacher into Under settled of principles law, Maryland waived the of defense limitations relying and is estopped upon from limitations.

The states majority opinion Merzbacher’s “al- treating leged application threats” as “inducements” is “a novel the estoppel rule in at Maryland” (majority opinion This is quite accurate. by While not the Court’s majority, opinion discussed this in Ziats, Bayshore supra, Industries v. Md. 192 A.2d Moreover, is very in Bay- point. holding much on the shore Industries a in requires present reversal the cases.17 in Bayshore Industries was whether claimant, The issue the who for sought compensation injuries work-related under the Act, Compensation Workers’ was from filing barred her claim the 18-month statute limitations set forth statute. receiving bill, After representative the claimant’s medical the employer company informed her the refused to reimburse her for medical expenses. During her the course of conversation, that, this employer the also the claimant warned if she filed a claim for workers’ compensation, “you will be You sorry. will here again probably never work no where 170, 192 around here more.” 232 Md. at A.2d at 489. For year, over a the claimant about frequently inquired the possi bility of work.18 returning to While promising call her regarding her with employment company, the the employer continued to threaten that claimant would not be re-called addition, opinion In Bayshore 17. directly Industries refutes majority’s "this assertion that Court first intimated in 1972 that ‘unconscionable, inequitable, or fraudulent act[s] commission or upon omission which another reliefs] has been mislead to his [or injury’ may equitably estop her] raising a defendant limitations as general defense (Majority opinion a 533). under a statute of limitations.” fact, majority opinion itself goes in footnote 7 itsof on to standing cite earlier principle. principle cases for the same was Carr, recognized early as as 1848 Steuart v. 440. Gill Although days had been claimant laid off two after her accident Bayshore completed because Industries had order on which she working, company allegedly promised had to re-call her. 560 company. the compensation against

if a claim for pursued she claimant, filed a to re-call the she refused employer After the the years more than two after the Commission claim with by suit was barred argued that her employer accident. The The claimant maintained statute of limitations. the 18-month because her compensation entitled to she was nonetheless employer’s the by сlaim was induced timely to file a failure ground her claim on the upheld The Commission threats. court The circuit estoppel. amounted to an the threats on “but her claim estoppel, upheld rejected applicability the duress, amount to a kind it considered to which ground the 169-170, 192 A.2d at 489. 282 Md. at of fraud.” judg- claimant’s Court, unanimously affirming in the This Industries, threats indicated that Bayshore ment preclude employer’s to to duress sufficient amounted (232 limitations, Md. at saying on the statute reliance 491): 192 A.2d at from Bayshore appellee would bar

“The threat cause the loss of to a threat to is similar employment future has been type A of the latter employment. threat present to duress injuries to amount personal in for held suits of an an favor by employee to avoid a release sufficient Co., 64 Mills v. Industrial Cotton Holmes employer. v. Midtown (Present employer); Wise (D.C.S.C.) 20 F.Supp. (threat by 42 404 (Minn.), Minn. N.W.2d Motors 46] [231 Perkins Oil employer); former release to employer, present (Ark.), Fitzgerald v. 14] Ark. Delaware [197 Co. of (threat injured employee’s discharge to S.W.2d to family, breadwinner only then the stepfather, business); and in a like employers him with other blacklist (Colo.), 123 P.2d Ingersoll Co. 134] Colo. Huddleston [109 another). annotation, 20 (threat also See discharge 743, at 751.” A.L.R.2d “amount[ed] hold that the coercion went on to

The Court should employer and that “[t]he conduct” clearly inequitable 174-175, by such conduct.” profiting estopped be future regarding threats employer’s at 491. The A.2d constituting an as viewed Court were employment “ upon “inducement which the claimant relied” and ‘amounting ” an estoppel.’ 179, 192 232 Md. at A.2d at 494. A provision of the Workers’ Compensation Act applicable Bayshore case, Industries Maryland (1957), former Code 101, 39(c), § Art. did relieve a claimant of the bar of limita tions if the failure to file a timely claim “was induced fraud, occаsioned by byor facts and circumstances amounting 169, to an estoppel,” 232 Md. at 192 A.2d at 488. While the Court in Bayshore Industries did state that the claimant was entitled to relief under this statutory provision, 232 Md. at 174, 192 A.2d at the Court also clearly held that the claim would not be by barred limitations general under principles of equitable estoppel and under this prior Court’s decisions in cases not involving such a statutory provision, 232 Md. at 175- 178, 192 A.2d at 491-494. Bayshore The Industries opinion relied general on principles equitable estoppel set in forth (5th Pomeroy’s Equity Ed.), Jurisprudence (1944), §§ 802-805 as well as on numerous cases Maryland applying those principles. 175-177, See 232 Md. at 192 A.2d at 492-493.

Furthermore, opinion Court’s in Bayshore Industries relied most heavily on Chandlee v. Shockley, supra, 219 Md. at 502-503, 150 A.2d at where this Court held that defendant had waived or was estopped to on rely the bar of action, limitations in a statutory even though the statute there involved contained no provision 39(c) similar § to former the Workers’ Compensation Act.19 Chief Judge Bruñe for the (232 Court in Bayshore 177, 192 Industries stated Md. at A.2d 493): Maryland “The case which is perhaps closest to the instant case insofar as estoppel plead limitations is concerned is Chandlee v. Shockley, 219 Md. 150 A.2d 438.

case plaintiff had injured been in an automobile collision Judge dissenting opinion Henderson’s Shockley, Chandlee v. 503-504, Md. at 150 A.2d at would have drawn a distinction between causes of Compensation action under the Workers’ Act where express provision there was concerning an estoppel, and other causes of action statutory where there was no provision. similar majority Hammond, opinion, by Judge rejected the distinction. car, the other who was the defen-

in which the driver of decedent, killed. was not filed dant’s had been Suit after her until more than six months the administratrix decla- the administratrix demurred to the qualification, § under 112 of Article 93 on the of limitations ground ration (1957). limitation This held that the time of the Code Court right on the in that section was a limitation contained could and hence that the defense merely remedy on the (over further held demurrer. This Court by be raised of the amended allegations that the Judges) dissent of two were particulars a bill of supplemented as declaration asserting estop the administratrix sufficient were, brief, allegations These defense of limitations. company, insurance who of the decedent’s representative administratrix, for the had assured to act was authorized failed, if efforts counsel that settlement the plaintiffs § 112 of pleaded. not be of limitations would defense in to that contained proviso no similar Article 93 contained (1957)—a 39(c) difference which § Article 101 of the Code dissenting majority in The opinion. out the pointed Line R. Scarborough v. Atlantic Coast heavily upon relied (cert. Co., (C.A.4th.) 339 U.S. 919 S.Ct. [70 den. 178 F.2d the 1343]), filing the of suit under which 94 L.Ed. delayed beyond the Liability Act was Employers’ Federal by given information because of erroneous statutory period which suit could as to the time within agent a railroad claim Scarborough pas- from a quoted be This Court brought. that no ‘The ancient maxim containing this statement: sage wrong deeply is too by his own conscious profit one should by to be set aside a of our law in the framework imbedded closely types the related between legalistic distinction recog- maxim is also That ancient of limitations.’ statutes ” law of this State.... nized as the “ that ‘no one general equitable principle Consequently, wrong,’” Chandlee his own conscious by profit should and the 150 A.2d at Shockley, swpra, 219 Md. at not to file defendant, plaintiff induces the who principle a bar of suit, relying upon from estopped or is has waived Industries limitations, Bayshore applied by Court in were this Moreover, to threats and coercion. threats in employer’s Bayshore Industries pale comparison to Merzbacher’s threats in present cases.

B. The at majority opinion point appears accept one principle potential that “a tort can as be plaintiff much induced to delay by threat, his or her action an he or affirmative as she can by 535), that, a promise” (majority opinion false situation, this estopped a defendant may relying upon be however, Later, the bar of limitations. the majority refuses to apply principle present this to the cases “for several reasons.” “[fjirst that, law, The is and foremost” reason as a matter of jury “no find acted Appellants could within a reasonable period following of time cessation Merzbacher’s con- duct.” (Majority opinion at The majority by continues concluding that “unsubstantiated fear of is retaliation not” a “valid commencing excuse for not suit within year the three (ibid.). general period” limitations description majority’s plaintiffs’ fear retalia- utterly

tion as amazing. Every “unsubstantiated” is single one of plaintiffs were threatened with death by Merzbach- er. He also threatened to kill their families. The threats heads, were a by holding gun “substantiated” to their in their shooting guns presence, by over shooting gun their heads, abuse, knife, by physical by a and by bringing someone to tell the students Merzbacher had killed a girl’s father girl complained because the had I about Merzbacher. do not know how Merzbacher’s threats could be more “substantiated” unless he had carried them out and killed one or more of the plaintiffs.

The view that majority’s plaintiffs the acted unreasonably, law, as a matter of when to they failed come forward before run, limitations and appre- hаd thus before Merzbacher was hended, an shows incomprehensible disregard for the coercive head, effect of a holding gun person’s particu- loaded to a and majority’s fathom the simply child’s head. I cannot larly to a Merz- that conduct such as for the fear appreciation lack of sexual young rape instill and reasonably could bacher’s could jury states that “no majority the abuse victims. While period a reasonable acted within plaintiffs find that” the find otherwise. time, jurors rational would many I doubt that to- Merzbacher’s conduct that majority emphasizes limitations had run before long ceased plaintiffs wards these on Although majority’s the reliance at (majority opinion entirely under different be warranted might such a factor the nature circumstances, totally ignores view majority’s the threats, and the in these cases. The of the threats reality deliberately calculated backing up, them were heinous conduct have, have, effects into the indefinite reasonably did to successfully defendant Merzbacher Allowing the future. forward victims should have come the position take the who re- when it was Merzbacher expired, limitations before ever you “if gun, of a point at the emphasized, peatedly kill this, your I’ll kill and I’ll whole you anybody tell about (E. added), 156, emphasis of an family eye” a blink fucking shockingly unfair. is may estopped that one be recognize purporting

While limitations, final reason for not majority’s on relying (majority follows in these cases is as principle applying 542-543): opinion legislative more than a nothing limitations is statute of

“[A] a needed to initiate amount of time about judgment suit____ judg- ignore this Court to implore Appellants peculiar Recognizing own. and substitute its ment are years who upon those of tender visited difficulties deter- already has minоrity, Legislature our their injured bring an reasonably needed of time mined the amount cannot majority. We reaching age after action determination.” disturb that estop- majority’s recognition makes

This statement after If reasonable time illusory. completely principle pel always suit is bringing for tortious conduct the defendant’s time period limitations, set forth in the statute of a defendant could never be from estopped relying on limitations. Under view, the majority’s every case where plaintiff the filed suit run, after limitations had the plaintiff would have waited an unreasonable ‍‌‌​‌‌‌​‌‌‌‌​​​‌‌​‌‌​‌‌‌‌‌​​‌‌‌‌​‌​‌‌​​‌‌​​​‌‌‌​‌‍of length time based on legislative judgment. majority’s The theory cannot be reconciled with decisions such Ziats, as Bayshore Industries v. supra, 232 Md. 192 A.2d 487; Chandlee v. Shockley, supra, 438; 150 A.2d Carr, Steuart supra, Gill at 440.

The flaw in the majority’s reasoning is that an estoppel rely upon legal a principle does not infringe contradict or upon legal Otherwise, principle. there would be no concept equitable estoppel. To defendant, hold that a because of his conduct, own may not advantage take particular of a legal proposition, including limitations, statute does subvert legal contradict proposition. The particular law re- same; defendant, mains the conduct, because of his simply is not allowed to take advantage the law. Merzbacher should not be allowed to take advantage of his successful threats these cases.

C. only Not plaintiffs’ is the position in present cases supported by the principles set forth in this Court’s prior opinions, but plaintiffs’ position is supported by decisions elsewhere applying estoppel defendant, duress bar a and/or abuse, accused of sexual from raising limitations as a defense. These decisions involve far less egregious facts than those presented in the cases at bar.20

For example, the Supreme Court of California applied the equitable doctrine of in John R. v. Oakland Unified estoppel Dist., School Cal.3d 256 Cal.Rptr. 769 P.2d 948 (1989). R., In John a fourteen-year-old student was molested 20. Two of the cases discussed application below involve estoppel ol’ only perpetrator's employer bar raising limitations as an Nonetheless, affirmative defense. by the rationales used these courts equally persuasive are present in the cases Merzbacher. he was at the teacher’s his mathematics teacher while

by program. in an extracurricular participating apartment Over the authorized the school district. had been program apartment, sessions. at the teacher’s course several by convincing engaging him that began to seduce John teacher part “constructive of their relation in acts would be a sexual P.2d at 949. Cal.Rptr. at ship.” 48 Cal.3d at if he did give poor grades also threatened to John The teacher occasion, the teacher convinced John not On one cooperate. anal intercourse. When John engage to in oral sex and about going parents that he was tell his informed his teacher As a abuse, threatened to retaliate. the sexual the teacher embarrassment, of his John did of these threats and result for a substan conduct to the authorities disclose his teacher’s conduct, he did disclose the John’s period of time. When tial and on action on their own behalf untimely an parents brought and the school district. the teacher against behalf of John for the school district on the judgment trial court entered The After an initial timely suit was not filed.21 ground that the court, Supreme the Court appellate to an intermediate appeal “for a factual the case to the trial court of California remanded estoppel.” applicability equitable on the determination (48 444-445, Cal.Rptr. at follows Cal.3d court reasoned as 951-952) 769-770, original): (emphasis P.2d at at “[Ujnder Court of reasoning of a number recent if ..., complaint, in the alleged the facts Appeal decisions timely demonstrate that the claim might well proven, estoppel---- theory equitable filed under a ^{[*] [*]} # :H ^[*] # misleading state- commonly results “Estoppel most claim; advisability of a actual ments about the need for or A to mislead is not essential---- fraud or the intent fortiori, there are may certainly be invoked when estoppel pre- or intimidation that are intended acts of violence by the charges against the teacher were dismissed 21. Because the level, its discussion to the plaintiffs the trial the court limited equitable estoppel against the school district. applicability of vent filing here, of a claim. [Citations And omitted]. the teacher’s threats retaliate John if boy reported the incidents of sexual molestation allegedly did just that.

“Although the teacher’s alleged threats this case were no largely by self-interest, doubt motivated rather than to prevent filing district, John from a claim against it would be clearly inconsistent with the equitable underpin- nings of the estoppel doctrine to permit the district by benefit such threats---- [W]e have no hesitation in concluding that may teacher’s threats be taken into account in resolving procedural plaintiffs status of claims against the district.”

A New York adopted court Anonymous position similar v. Anonymous, (1992). 584 N.Y.S.2d 154 Misc.2d 46 There, plaintiff alleged that sexually she was abused her best friend’s father from the years time she was four old until twenty she turned four. The plaintiff testified that the defendant “would tell her that he was doing ‘things’ these for her benefit and that she should not tell anyone else because it 718, their secret.” 584 N.Y.S.2d at 154 Misc.2d at 49. The defendant’s behavior frightened threatened and plain tiff, her causing not to 1991, reveal the acts in question until four years after the abuse ended. The defendant claimed that limitations should bar the plaintiffs suit. plaintiff argued that equitable estoppel should preclude the defendant’s reli because, ance on “by limitations of ... virtue statements made by defendant, ... that he was doing this for her own good or secret[,] that it was their ... she was under duress and felt threatened and coerced and was disabled from and unable to commence the action a timely fashion.” 584 N.Y.S.2d at 722, 154 Misc.2d at 56. The court concluded that the fact finder should given be opportunity consider whether equitable estoppel should bar the defendant raising from limitations as a defense. 584 722-723, 154 N.Y.S.2d at Misc.2d at 56-57. Jones, Jones v.

In 242 N.J.Super. (1990), 576 A.2d 316 the plaintiff brought suit against her on parents behalf of

568 her year daughter, alleging her fourteen old that herself and sexually abused knowledge—had father—with her mother’s years, beginning years for when she was eleven her several who had alleged daughter, old. The also her plaintiff product medical was a developed problems, several her father relationship. According plaintiff, incestuous once engage approximately forced her to sexual intercourse if him. To reported to kill her she a week and threatened threats, beat her plaintiffs regularly reinforce these father to suffocate her on several occasions. Conse- attempted and father, and “lived in terror” of her quently, plaintiff up “sweating and wake nightmares continued to have after “coming [her].” for fear that her father was shaking” at The defendants N.J.Super. at 576 A.2d ground on thе that the statute summary judgment moved for response, plaintiff argued of limitations had run. duress, placed coercive acts and threats her under her father’s timely filing suit. The court stated: prevented which her that, limits, prospec- ... of the view within certain “We are may acts and threats rise to such a tive defendant’s coercive of will as to of his freedom deprive plaintiff level of duress at N.J.Super. toll the statute of limitations.” thereby Jersey 322. The New court concluded 576 A.2d at submissions raised unre- plaintiff’s “we are convinced that of a only by way issues which can be decided solved factual 576 A.2d at 323. hearing.” NJ.Super. plenary considered recently, Appeals the California Court of Most should benefit from the statute whether a child abuser Dist., P. Mojave School Christopher limitations Unified (1993). There, 165, 23 Chris- Cal.App.4th Cal.Rptr.2d sexually by molested a teach- 11-year-old boy, an topher, District, defendant, Mojave Unified School by the employed er trip. molesting Christopher, After during a school field anyone.” him to tell As a result of teacher told “not it, statement, the teacher said way and the which teacher’s do to might of what [the teacher] was “afraid Christopher at 355. He Cal.Rptr.2d at Cal.App.4th [him].” him, harm physically to fear that his teacher would continued even after all contact between the two ended. Consequently, Christopher report police began did the incident until the investigating another sexual abuse filed complaint against Thereafter, pled guilty separate teacher. the teacher to a sentenced, sexual molestation After the charge. teacher was behalf, Christopher’s father retained counsel on his son’s Christopher’s attorney sought untimely to file an claim under the state Tort Claims Act. The trial upheld court the defen- limitations, upon dant’s reliancе but the California Court (19 reversed, Appeal as follows explaining Cal.App.4th 359): 23 Cal.Rptr.2d at particularly important

“Several circumstances are in this First, teacher, case. the directive not to tell was by made a recognized authority figure, 11-year-old a to an student. Students are generally expected to follow their teacher’s Second, conjunction directives. the statement was made with a sexual A molestation. common trait of ‘child sexual abuse syndrome’ accommodation is the child’s failure to report, delay in the abuse. reporting very The nature of underlying tort deters the molested child from reporting Thus, the abuse. a molestation [Citations omitted]. cou- pled report with a directive not to the incident may well deter promptly a child from reporting abuse and there- by his or her protecting right redress under the Tort Claims Act....

“Accordingly, conclude the presented we circumstances case, established, by this if support are sufficient to an estoppel. A authority figure directive an to a child not to tell anyone the molestation is a sufficient inducement delay to invoke an estoppel. Whether the District is estopped asserting appellant’s as a defense failure to comply question with the claims statutes presents fact for the trial court.”

D. statutes of limitations public policies underlying similar- ly support majority’s position do not under the circum- For presented example, primary stances these cases. 570

policy underlying these statutes is “fairness to the defen remain, dant—providing obligations assurance that no ancient him relieving defending against a claim after ‘evidence lost, faded, has been memories have and witnesses have ” Products, Harig v. Johns-Manville disappeared.’ 284 Md. See, Maskell, (1978). 70, 76, 299, e.g., Doe v. 394 A.2d 302 342 v. 684, 689-690, 1087, (1996); Hеcht Md. 679 A.2d 1089-1090 Trust, Resolution 324, 332-333, 394, 333 Md. 635 A.2d 398-399 Pierce (1994); 656, Corp., v. Johns-Manville Sales Hillman, Bertonazzi v. (1983); 464 A.2d 1026 Adm’x, (1966). 361, 367, Md. A.2d Statutes of limitation were also created to encourage plaintiffs their claims. Pierce diligence pursuing exercise reasonable Corp., supra, Johns-Manville Sales 296 Md. at A.2d at 1026. however, limitations, underlying

These concerns statutes of cases, present are not the cases at bar. In these where the allegations repetitive involve and extreme acts of physical abuse, highly unlikely sexual it is that “memories have faded.” Indeed, deposition testimony plain- the the twelve available clarity tiffs reveals the detail and with which the still plaintiffs upon recall the abuse inflicted them Merzbacher. More- over, plaintiffs still suffer effects of Merzbacher’s to their According deposition testimony, conduct. most abuse; plaintiffs counseling many still seek to deal with the had and continue to have about nightmares them have will Merzbacher, and several of them have had and will continue to Thus, marital alcohol and related drug problems. have and/or plaintiffs’ there is no real concern that claims are either Similarly, hardly fraudulent or stale. it would be “unfair” to Merzbacher, threats, preclude taking who made the advantage very threats and coercion that caused the earlier, their As the evi- plaintiffs delay suits. discussed dence shows that the reason that failed to file plaintiffs threats of timely physical suit manner was extreme harm to them and to their families. Once Merzbacher was they plaintiffs safety, arrested and the were assured of their the abuse and reported timely filed claims Merzbach- er. majority opinion states that the inapplicability

present public policies circumstances of the stat- underlying utes of limitations “is quite point.” (Majority beside the The on opinion majority goes to indicate that not applying the “rewriting] statute limitations amounts to legislative enactment” and that such “function belongs solely to the General Assembly.” rigidity regard Such with to the application of statutes of limitations is not with consistent previously opinions discussed of this Court to declining apply statutes of limitations because of the defendant’s conduct. It is not consistent with this opinions adopting Court’s the dis- See, rule. covery e.g., Pierce v. Johns-Manville Corp., Sales 664-669, 296 Md. at supra, 464 A.2d at 1025-1028 on (relying public policies underlying holding statutes of limitations in barred); plaintiffs claim was not time Poffenberger v. Risser, (1981) 631, 636, 677, 290 Md. 431 A.2d 680 (adopting discovery rule “to generally prevent injustice an other cases”); Sears, Ulman, types Roebuck & Co. v.

397, 401, (1980) (“fairness 412 A.2d 1242 plaintiff to a who has not on slept rights justifies exceptions his to [the] rule”); Products, general Harig v. Johns-Manville 284 supra, Md. at 394 A.2d at 305 (“[ajvoiding possible injustice such outweighs repose cases the desire for and administrative expediency, which primary underpinnings are the of the limi- statute”). tations

E. reiterate, To this has long Court held that a defendant’s reliance on the running of limitations “should not be sanc by unjust inequitable.” tioned a Court” where it “would be Carr, supra, applied Steuart Gill at 440. The Court has “ ancient maxim that no one profit by ‘[t]he should his own ” wrong’ conscious from preclude relying defendants on the Ziats, bar of limitations. Bayshore supra, Industries v.

Md. at Shockley, supra, A.2d at Chandlee v. 500, 150

Md. at A.2d at 442. A more appropriate present applying case than the ones for these could principles hardly imagined. repeated be Merzbacher, heinous by coupled conduct the defendant with gunpoint the threats at to the victims’ lives and lives of families, virtually their is civil unprecedented case coming heretofore before this Court. Merzbacher’s threats were successful until he was the authorities. apprеhended profit egregious To allow Merzbacher from his successful outrageous.22 criminal conduct is decision clashes with the concern for

Finally, majority’s major rights Maryland public victims’ which is a tenet failed to policy.23 Society totally protect these schoolchildren abuse, repeated physical sexual other rapes, and mental abuse, being gunpoint by and from terrorized at Merzbacher. Merzbacher, finally began investigating When the authorities him, apprehended thereby allowing safely the victims disclose what had the victims are it is happened, told that too late. Merzbacher will benefit from the success of his terror campaign, ism and the victims are made to suffer all over again. Society, protect initially, ‍‌‌​‌‌‌​‌‌‌‌​​​‌‌​‌‌​‌‌‌‌‌​​‌‌‌‌​‌​‌‌​​‌‌​​​‌‌‌​‌‍which failed to the victims permit refuses to them to seek compensation Merzbach him of his I er and rewards for success criminal coercion. dissent. indicates, opinion grant majority summary

22. As the trial court's cases, judgment including ground underlying grant, in these equally applicable pur- to Merzbacher and the For Archdiocese. poses summary judgment, drew no the court distinction between principle Maryland the two defendants. Consistent with the settled procedure appellate ordinarily will "that an court limit its review of the granting summary judgment grounds upon by to those relied the trial court,” 4, 650, Carney, Corp. IA Const. v. 708 n. 672 A.2d cited, (1996), majority 653 n. 4 and cases there draws no distinction between Merzbacher’s reliance on limitations and the Archdiocese’s that, majority claims are reliance on limitations. The holds because the Merzbacher, they against the Arch- barred "are likewise barred (majority opinion Consequently, I shall not discuss diocese” any possible difference between Merzbacher and the Archdiocese with respect to the bar of limitations. See, e.g., Maryland Rights. 23. Article 47 of the Declaration of J., RAKER, with herein and expressed concurs the views joins opinion. this A.2d 885

The GREAT ATLANTIC & PACIFIC COMPANY, al., INC.,

TEA et IMBRAGUGLIO, A. et al. Ethel Term, Sept. No. 1996. Appeals Maryland.

Court of July 1997. Sept. Reconsideration Denied

Case Details

Case Name: Murphy v. Merzbacher

Court Name: Court of Appeals of Maryland

Date Published: Jul 28, 1997

Citation: 697 A.2d 861

Docket Number: 55, Sept. Term, 1996

Court Abbreviation: Md.